tv Federal Judges Discuss the Bill of Rights in Modern Times CSPAN December 15, 2016 7:00pm-8:03pm EST
>> guest: i'm trying to go back to what we did in july of 2013 and i don't recall what he was referring to as far as the government using propaganda for americans. i'm not aware of any program that we have that is aimed at providing trying to influence american influence through propaganda. on a political issue. i'm just not aware of it. you can make the information available, one of my constituents is calling in. >> host: one action that congress to take before leaving for the holiday break is on iran. the white house put out the statement saying that the administration has make clear that an extension of the round sanctions act while unnecessary is consistent with our commitment to the joint action plan. the extension of the iran sanctions act is becoming law
without the president's signature. signature. can you explain what this is to our viewers? spee-02 i understand the president's position and i certainly had no problems with what he's doing. the iran sanctions act was passed by congress which gave the president. >> you're watching on our youtube or joining us our friends from c-span two, welcome and and happy bill of rights day. since president franklin roosevelt claimed it on december fifteenth, 1941, the day has served as a reminder that we should not take for granted the rights protected in this document. our partner for tonight's program on the bill of rights and the 21st century is a constitutional sources project and we thank them for their support. before we begin tonight's discussion like to tell you about two programs coming up next month. on tuesday, january 17 at noon journalist and author brett will talk about his new book, three days in january and white
eisenhower's final mission which is about eisenhower's prophetic farewell address. at new done january 18 and 19th we will show a selection of films from russian pitcher holdings. the programs called from the vaults presidential inauguration's and will focus on historical and our girl events. to learn more about these in our public programs and submissions consult a monthly calendar of events in print or online at archives.gov. their copies in the lobby as well as sign-up sheets where you can receive it via regular mail or e-mail. also have other national archives programs and activities information. another way to become a more involved is to become a member of the national archives foundation. the foundation supports her education and outreach activities and there's application for membership in the lobby. the united states constitution's oldest written national
constitution still enforced. one of the reasons it has endured, one of the first actions of the first federal congress from 1789 was to pass a set of amendments that we call the bill of rights. it was necessary stated james madison to expressly declare the great rights of mankind secured under this constitution. during the 225th anniversary year the national archives put together a nationwide programs of events and exhibits to celebrate and examine the bill of rights. we have posted several discussions like tonight relating to constitutional right. we put on a series of national conversations on rights and justice around the country and we've created several exhibits and educational resources. i hope you've had the opportunity to receive the
information upstairs. outside washington d.c. area you may have the opportunity to see the companion traveling exhibit, is currently in dallas texas and will soon be in houston. the centerpiece of this activity is a 225-year-old parchment document itself, the original bill of rights in the rotunda. in fact, it was on the bill of rights day 1952 that all three charters, the declaration of independence, the constitution of the bill of rights were first displayed together in a rotunda. at the ceremony to unveil the document president harry truman declared that in my opinion, the bill of rights is most important the bill of rights is most important part of the constitution of the united states. the only document of the world that protects the citizen against his government. he also warned against letting the documents become no better than mummies in their glass cases. judging from what i've seen, the, the crowds of people
who visit the rotunda every year do not consider the charters to be mere curiosities. they in our distinguished panel of judges here tonight know that the bill of rights has meaning for us everyday. to introduce her panelist alternative over to julie, the executive director of our partner this evening in the constitutional sources project. julie. [applause] thank you. >> good evening my name is julie and i have the privilege of serving as the executive director of the constitutional forces project we are an organization devoted to educating citizens of all ages about the history of the united states constitution. for you to explore our digital library tracing the creation, ratification and amendment of the constitution.
let me begin by thanking the archivist of the united states for his introductory remarks and think in national archives are partnering with us to host the special bill of rights day event. we're celebrating the 220,225th anniversary of the ratification of the bill of rights on december 15 1791. the bill of rights articulates our national values and ideals. including the guarantee was freedom of speech, religion, and the press. the right to the press. the right to assemble, the promise of a speedy trial by jury, the protection against double jeopardy and unreasonable searches and seizures in the recognition of the rights to bare arm. it strikes a a personal court the way the declaration of independence does the structural provisions do not yet too few americans know the history of the bill of rights. a survey survey done last year, one in ten americans thinks the
bill of rights includes the right to own a pet. for the record, it doesn't. before i invite our moderator and panelists to the stage to discuss the bill of rights the 21st century without it be useful to provide our guests with a very brief history of the bill of rights and the 18th century when the document was drafted and ratified. pair with me i will give you the legislative history of the bill of rights in two minutes. or am going to try. you might be surprised that when the constitution was signed in september 1787 it did not include a bill of rights. when george mason of virginia proposed a bill of rights be added to the constitution five days prior to the end of the constitutional convention his per puzzle was near unanimously
rejected. the state declaration of rights were sufficient at a federal bill of rights was unnecessary and may be dangerous. and so the constitution was submitted to the states for ratification with no bill of rights. while the bill of rights became a rallying call for anti- federalist for those who pose ratification of the constitution they're interested in proposing amendments that would alter the structure and power of the federal government. federalist like james madison who we call the father of the constitution and bill of rights that was unacceptable. his decision to draft and pass the bill of rights should be understood. once the constitution was adopted newly elected representative, james madison urge the first congress to reject amendments that would change the structure of the constitution the proposed amendments came out of ratifying convention and adopt the bill of rights as suggested. by 1788 james madison had come
to see the broader value of the bill of rights. he wrote to he wrote to thomas jefferson within the political truth declared in that manner required by degrees the character of fundamental maximum of free government. as they become incorporated counteract the impulses of interest and passion. madison attended to insert his amendments into the body of the constitution. this was ultimately rejected by congress. the the house votes on supplements to the constitution and that goes over to the senate for consideration where they reduce that number to 12. those 12 amendments are sent to the state for ratification and the anniversary were celebrating tonight is when virginia becomes the tenth of 14 states to approve ten of the 12 amendments that we now call the bill of rights.
if you are interested in learning more about the history of the bill of rights you can explore what a state of history in the concourse library and pick up the washington times special report which is available outside of the auditorium. both provide articles for that special report which is available online on the washington times website. i know invite the moderator to the stage along with our panelist, judge thomas griffith, patricia, and and andre. thank you and happy bill of rights day. [applause] >> thank you for coming out on one of the coldest bill of rights a's in recent memory for a discussion on the 225th anniversary of the ratification. thank you for the introduction.
as someone who covers the supreme court and the appellate courts as i interpret the bill of rights and other constitutional provisions, it's a great privilege to have three circuit judges talk about our first ten amendments of the constitution and what they mean. they are on the frontlines of figuring figuring out what those words mean. they are not always self-explanatory. as judges they confront hard problems about what those rights mean in the 21st century and will be confronting those in the years ahead. so thank you for coming out. i'm. i'm sure audience here and on c-span will appreciate how to think about the bill of rights and to think about these questions and how to imagine what issues will arise in the
future and what the different ways we might have of applying these old words in the digital era. so thank you for coming. we'll. we'll have questions later on but we will try to have a conversational discussion about the bill of rights. i thought it's a start the white house issues a lot of proclamations and announcements and so forth. one one of those that was e-mailed out yesterday was the president's bill of rights day, proclamation. i don't know how different it is from those issued every year because i have not read them every year. but i thought in light of tonight's presentation we should look at what president obama had to say about it. in his message to citizens he said that as originally created,
the bill of rights safeguarded personal liberties and assured equal justice under the law for many but not for all. in in the centuries that followed ratification courageous americans agitated and sacrificed to extend these rights to more people. he goes on to say that he talks about the way the rights were expanded workers organize, these experience remind us that it that freedom is intertwined with the freedom of others. he has and you can read the whole thing on the white house website. that the the nation saw was never inevitable and as long as people remained to fight for justice we can open more doors for opportunity and carry forward a vision of liberty for generations to come. that leads us to think about the bill of rights, is it something that is static? and frozen in the year 1791?
or is it something that is applied differently or evolves? or is there some way of reconciling both the original language of the bill of rights and circumstances that we see today that are perhaps a bit different than wise people like james madison they have foreseen back in the 18th century. so what are we talking about. are these these words that only have relevance from the original conception? or do they take on different meetings today? i thought we could throw it open. do you have seniority of this group judge? and if so, then with that great distinction calls comes responsibility.
>> first of all i'm honored to be here and i think the national archives for this event and i'm grateful to be here with my colleagues and with you. it turns out out that question that you ask lies at the heart of a rather vigorous debate over the role of judges that has taken place since the framing of the constitution. and the views that i have developed over time, you used afraid that might be majority. you said the the bill of rights are they frozen in time, i am up the view that there were certain values that were expressed at the time of the founding of the bill of rights and that they did express a definite view of the relationship between the individual and the state with respect to certain activities and that it is our responsibility as judges to enforce those but not to change those.
the job that we are about is not about determining the merits of the case by our own lights of what is right, just, and a credible but by the law, in this case as was ratified by the people of the united states. i am of the school that if there's going to be changes made to the laws of bill of rights there's a method to do that and we have to see an amendment process. it's not appropriate for unelected judges who are for the most part politically unaccountable to make those changes. now to be sure i will get get the application of those principles to new circumstances is necessary, but in my view our job and responsibility as a judge is to identify what is the value that is expressed in the
law, in this case and the amendments, the bill of rights to identify that and then apply that neutrally to the dispute at hand. >> does anybody disagree with that? >> i heard of a lot of what i agree with from the judge and i want to join in thank you in the archives and you and my colleagues for this opportunity. i want to salute those of you who are seated out there for coming out on such a brutal night. the bill of rights did not actually spring from madison's head. there were lots of state constitutions at the time of ratification and many of the rights we see in the bill of rights had a very healthy and robust history even as of 1791. and it's very interesting
insofar as they contain both prescriptions and proscriptions aimed at government and governments relation to the individual. but i agree with what's been said, the text hasn't changed and i suppose without being too semantical, the rights haven't changed but the facts have changed. the technology has brought about many changes. and subsequent amendments have brought about many changes let's face it, supreme court decision-making has changed. all of that informs modern-day interpretation of how one applies the bill of rights and the pragmatic reality of judge, decision-making in the 21st century. that shouldn't be remarkable it seems to me.
>> it and i would add, first well thank you i don't want to be repetitive but i don't want to be on thankful and i am thankful for this opportunity. one of the things we need to keep in mind is that in a day and age in which we are used to laws being weighed by the pound and their length and size, the bill of rights is a really sustained in spartan document. you can fit these ten foundational principles on one side of one page. that is a document in the words are assisting to and intelligent. people are guaranteed due process of law, congress shall not make laws respecting an establishment of religion. that's what we have to work with, those words are used they frozen in time, they are written into our constitutional order
and to our constitutional document and those are the words, we don't change those words except through a process of constitutional amendment. but i think with your fax situation, applying those words to the very factual circumstances and disputes over a conch course of 20000 years is what is challenging and instead of thinking of it is something that is frozen in a mobile in a negative way i think of it as the phrase what we associate with robert frost is a good fences make good neighbors but i think it a political structure in a governmental structure, a divisional a power that we have is apt. what the bill of rights is, as part of the whole constitution it's hugely
important. the designation of fences, the division of power. what government has and doesn't have. what remains for the people. so the people. so those fences are they are. but policing the and figuring out where that fence falls in new circumstances changing is a challenging task we face. >> by the way, as a parent of a five-year-old girl i would say that the word frozen has a very positive context for some of the younger. and not just girls. has the late justice glia pointed out, the basic constitution, most of what concerns is the structure of government. the bill of rights is about individual rights and what rights they have to protect himself or herself from the government. but, as he said, the supreme
court and the laura courts have applied those words over the centuries and tried to give them specific application as a guide to police of individuals had what mean in these individual circumstances. how far are we? is there an annotated bill of rights that you can say based on judicial interpretations and statutory elaborations that answers most of the questions that might arise under it? or is there a great unknown that is related to what those very eloquent words mean. >> we just started the seniority thing but -- >> it's actually amazing how
often as a practicing lawyer and judge i can't believe this hasn't been answered by now. and that's because the fences are written in the constitution, the country itself keeps growing and changing the nature of government changes. a new questions arise in technologies come along and what's a reasonable search of a stagecoach versus a reasonable search of a car using gps technology. how do you answer those questions? so the issues do keep changing and coming up in new forms. on the d.c. circuit we have jurisdiction over guantánamo. and how the constitution applies to enemy combatants detained in land rented by the united states in a foreign country. as it turns out, have been
answered when it first came out. it had to be answered. so there's new applications that arise all the time. >> i think the first answer we gave was not acceptable to the supreme court. >> i was before i came along. >> so i think it's important, as he said we are not here to rewrite the constitution. i don't think any of us want to do that and i don't want to live in a country where judges get to rewrite the constitution at liberty. i think. i think we can see countries like that around the world and that's not very want to be. but to struggle with our colleagues to figure out how it applies is a challenge. >> on the question of whether all the answers are in, the answer is absolutely not. it is remarkable how much has not been decided. it's equally phenomenal how we haven't thought of so many
questions yet. when i teach law school i often point out with emphasis that it wasn't until 1976 that the supreme court actually decided the question, do you need an arrest warrant to arrest a person in a public place? you might think considering the fourth amendment and 200 years plus a criminal adjudication, that question would've been presented well before 76, but there it was. another was. another example, do you need an arrest warrant to make it or routine felony arrest a person's home? the supreme court said yes in 1980. and you can understand why law students at the time with think wait a minute, surely the supreme court has gotten around to answering that question.
so there are lots of obvious questions we can anticipate, but but so many that we cannot possibly anticipate that our surely if not yet in the pipeline, are on their way to the courts. >> i have my theory of why that's taken place and why the bill of rights is therefore more relevant today than it has ever been. that's because we live in a time where there's a vast expansion of the power of government. the bill of rights is supposed to help regulate the interaction between the government and individual liberty. has government power is increased significantly over the past 40 to 60 years those issues come up. we find that individual interactions with the government implicate liberty interest in other interests protected by the bill of rights. so that's why think it's never
present challenge. it really isn't frozen in time these really are dusty old concepts by people wearing three corded hats, they were alive then and i think they're more alive today than ever as we try to figure out what this liberty, what these other rights mean in the modern setting where the government has such vast power in every now can cranny of our lives. >> the judge makes a good point, i will remind us how chief justice rehnquist made it a routine part of his annual message on the judiciary, lamenting the federalization of crimes. it seems for a decade or more
this was always a part of his end-of-the-year message to congress and to the people. that is the point you're making by your comments. >> there's another thing and that is also monumental changes that happen over time and to whom the bill of rights applied and to whom it protects. as originally enacted the anniversary we are celebrating applied its limitations on the federal government only, not the states. and who the people were is a much narrower bunch than it had come to be over time where the civil war has grown the number of people that when the understand protections in its application after the civil war and most of its provision to the state.
and so it's a bit younger document in that sense, not chronologically but in the breath and scope of the application and i think a lot of people understand up front. in the last thing i would say is it's not only the government changes but i think there must be something about human nature and how we interact with each other because the ten commandments have been around way longer and people still fight about what that equally sustained document says and means and how to place to everything in their daily lives. so maybe it's the nature of humans that others are information changes -- just a historical note, there's many communities around the community where you can see the ten commandments in front of the building or elsewhere. it was a marketing campaign for the movie. the fox studios on the fraternal order of eagles had a great marketing thing were stars and pitcher win and avail monoliths
by we the people. in also how the three of us go about it, but we don't get to look at the constitution to understand the history and decide that we all belong to the interior court. it is the supreme court. and what those provisions mean. and a personal view that would differ from the supreme court provision of the constitution. moi that these three judges year despite what the supreme court says.
>> so that l. legged description palms that is a due process question. so what the judge's word talking about like the 14th amendment and to look at those better only applied to the federal government. ended in the 14th amendment to the states but not a direct command that we have seen from the 20th-century in particular
that that is the background that gives more meaning to the words that came before. >> and iamb backing you up there is the equal protection clause the of the 14th amendment. and this supreme court says correctly that the meaning of due process includes the equal protection guarantee. then it is explicit in the 14th amendment. batted z iconic example. >> what if that wasn't? with there was the equal protection clause the maybe the 14th would not have
been necessary. >> after the brown vs. board of education when there were not the words equal protection to have segregated schools a situation where segregation was illegal in all 50 states that is like saying that the people here could not vote. [laughter] that is preposterous. a little constitutional joke . forgive me the of bill of rights does that. so to talk about a specific provision as they apply to religion.
and with the free exercise. in that is very important with that litigation around uh country but yet to base still i.r.a. a measure of what exactly they been and with christianity. and to believe the bill of the ten commandments. >> what do those words mean? and with the official government. what do they mean now with
those many more religions and wine over another and of those different religions. and then to figure it out. how do even approach a question like that correct. >> this is the work one that in many ways it is at matter of history to understand what did the framers intend back at the time of the amendment it was ratified? that is a historical quest. but i am not a historian.
but at least says i perceive it the quest that we are on is historical to identify what is that value and how does that apply in that they be very different but vice start with the history. >> i and was saved first of all, it isn't just the establishment of religion we have to figure out what respecting means and what religion is first sometimes that is an issue liotta lucky ones in the first cut to be interpreted by many
judges and justices before us if you look at what particular supreme court has said and where the offense shall lie and that it leased gives us suffer a more to figure out how the next link of the chain of what is okay and what is not quicks is say work and progress but i find it helpful to look at the lows decisions not just what they howled but the reasoning and principles to share their ideas of the total documents and the bill of rights.
>> and interpretation falls with the ongoing dialogue that takes place between the people and the courts and especially between congress and the courts. in particular with the first amendment context congress has spoken what they believe those words mean nor should mean with the interpretation of the constitution and of bill of rights although the supreme court is the last word there other words to be spoken to draw meaningful these words, so harkening back to your earlier comment there is a dialogue that as i say plays a role to figure
out what those words meant back then and the practical application of those words. >> people don't come to us as judges to say what do you think? we have this adversarial system of justice that if we don't reach out to decide those issues they have fought controversy with day dispute the impact and what
the dispute is to evaluate the government operating on this individual and the impact of their religions to take that precedent and historical document and applied them. to have a much more circumspect role and to solve the problems that people have. >> their religious liberty issues the current mess of the of controversy that
something remarkable has happened back in in 19931 congress unanimously passed the religious freedom restoration act that he considered one of is same goal achievements and here we are the phrases and religious liberty itself is code for bigotry the same bill that was passed unanimously causes a great deal of controversy today to say how fluid that situation is and how live they are not settled in they will be
faced with these issues what does religious liberty mean in the marketplace and it is a fluid situation. do you have thoughts for the above question specifically we will seek of the establishment of the religion clacks what could be coming down the pike? >> with of crystal ball with the free exercise with the national commitment to nondiscrimination of equal protection and to freedom of religion and how that plays out.
>> end for these audience what the free exercise that the supreme court recognizes same-sex marriage all-american and have the objection but what about the commercial activities or that of marriage mania the state court to issue but what is that balladry but they could come up with the other questions about differing religions with different objections wan and along that line it is hard
but certainly the supreme grass as enunciated the right of reaction. >> is not a linear problem we can do that here but that is not how we works. with of prior understanding you have that going on but shortly thereafter with the equal protection clause with the state versus federal government being changed but there is a lot of pieces interpreted all the time and
it is how those pieces come back to gather as we keep working our way through the constitution to create those understanding of the supreme court. >> but the good news this the constitution seems to be a part of every political discussion that takes place of any election management is fashionable. >> i did bring mine. >> but it is fashionable in washington among politicians to have a the pocket constitution and it is great for education and our discussion the better but the bad news it is not easy
to understand these are tough issues. as said judges said it is language of the 18th century we don't talk that way today's though the rhetorical challenge but even more than that the individuals that struggled for years. that is not easy work. so that is what citizenship is about to so i am a little bit wary it is easy this
way. they are difficult issues with uh competition between the nondiscrimination. and hopefully those judges in the fat composition of free-speech jaffray exercises of the incoming together when government recognizes that they are establishing the religion so even with those amendments themselves to figure out where those lines are.
>> that is exactly right and the description of course, is a clash of values as a conflict, as society society, undemocratic family , we have a number that come into conflict and as you have just heard, many of those arias' within the context of bill of rights guarantee. did his hard end requires hard work and part of this is the citizenry to do the work as best you can sell
your and informed citizen to be a part of that dialogue. >> when of of things that we focus on is the effect of technology on these different rights that we see. the first amendment refers to freedom of the press. that was made out of pieces and metal and you would twist set to print a page but now a buddy with their phone and a twitter has a printing press. so talk about the freedom of search and seizure that was the red coats grabbing you looking for your couch now one it could be an algorithm in a server or a satellite.
how do you reconcile these changes that by their very scope has uh quantity affect the of quality? >> the genius of the founders and they do use that word advisedly because as justice marshall would say and you would hear that echoed in the summary of the president's statement today, and the constitution was a remarkable document that was not perfect. and justice marshall used to say it's the amendment process as well as the reconstruction amendment
that we celebrated this year to have that proclamation 100 years ago, derek is a lot of imperfection but the genius was to craft the document without the specificity of the amendments to account for the unforeseeable or the unforeseen. so yes my daughter who would texture friends, and these are hard questions but we start with the text that they will not give us a reliable answer. the test alone will not give reliable answers to these profound questions. so look beyond the even that
will not provide the answers. so it is tough work. go tell your friends and they do tough work laugh laugh. >> i had the privilege to be of the three judge panel of the d.c. circuit first consider the case that was the jones gps case if the police can access the gps without a warrant. it was a fascinating case. the lawyers also lives were spectacular. i cannot disclose what took place with the judge's but i took pleasure with those press accounts that the judge's would have various
views of the issue by the president that appointed as. and they were entirely wrong . they were guessing because we were dealing with a novel application of a longstanding principle and how does that apply to a circumstance that literally has never been had before? it took us months, three judges to decide the outcome. but most of the cases we here in the oral argument in short order we know the outcome but in this case it took months of exchanging back-and-forth because we were wrestling with this issue what does that fourth amendment mean? what does it come to gps surveillance?
in 1791 they have no idea what you are talking about. but the historical work was significant to find out what is that of heart of the fourth amendment that was critical against government boveri each. but what was involved blacks of a bite to think that it adopted our reasoning. it did not the justice scalia ended up with the same results we dead but for different reasons. but the struggle to watch the allow process unfolds, as trying to identify the values, to see how that might apply was a novel circumstance. that was an exciting
adventure. >> queue may recall that there were lions talking about what if there was that 80 biddy constable put in the stagecoach? recently trying to to analogize but even if a new novel of -- application you ask what is the line that is drawn? so think about it is raising is there something someone similar? and that is what we try to draw on. >> this is us case where the
police just slap the tracker on without a warrant without legal purposes. the government's argument was if i was a cop standing in the street i could follow them down the public street so this is the same message i have a limited number of cops to follow the suspect every day for three months because it period is the same thing in the d.c. circuit said no. it is said really. the supreme court said it is not although they had different reasoning. but there is a unanimous decision of three different opinions the majority then the minority opinion but they all agreed it was us search weather was reasonable did not come out but that implication struck me as i was late to watching
the show the zero wire there is season to. well before your case came up bin is novel but they're actually in a garage and they put the tracker on it. they just did it. by the time they got to the court may be that was part of police practice here in the region. >> but 50 years ago justice scalia anticipated such a case as a piece of technology known as a thermal imager that in the case this had to do with marijuana the growth operation so we cut said
them. >> something in me predicts those two justices will always be on opposite sides. >> i was going to say what's going on is life changes and evolves. part of the issue is how much information, such as the were following up at how much information they can accumulate and collect. it was how much, like i say would have that many police officers and you have the same issue when the amount of information get from a fingerprint is something in the amount to get from swapping the inside of someone's cheek is another thing in dealing with where does that cross the line when government gets more information is he getting too much or is it just getting come as a doing a similar thing for
you to get information it needs for identifying purposes. these are the types of balancing requirements that are built into the fourth amendment constitution that we are trying to apply to what not just the technology itself that they modify information at providing. >> and justice canady's opinion in a case just referred to us quite emphatic in its reliance on current knowledge that the dna protocols used by the fbi for so-called dna fingerprinting will not reveal anything about a person other than the identity and there are very reputable scientists out there today who say that assumption close in such assurance actually may not be true. on